JUDGMENT Sen, J.
1. The facts which have given rise to this appeal, lie within a very narrow compass. On 4th June 1926, Mulu executed a deed of gift in favour of Mohammad Sharif Khan, his maternal grandson. The deed of gift comprised three kinds of property, (a) a house, (b) a kolhu and (c) shares in 14 plots. The last mentioned property forms part of a fixed rate holding, held by Mulu, jointly with Gausi and others.
2. The defendants did not allow the plaintiff to take possession of this property; hence the suit for a declaration of title to a one-third share out of 3.96 in the fixed rate holding with a prayer for possession in the alternative.
3. The suit was resisted mainly upon the ground that the donor had not delivered possession to the donee under the deed of gift, and that no valid title had passed to the plaintiff. The Court of first instance repelled this plea and gave the plaintiff a decree for possession. The lower appellate Court has affirmed this decision.
4. The main contention put forward by the defendants-appellants is, that the property in suit, is in the possession of the defendants and that the donor was not in possession of the same on 4th June 1926, when the gift was made in favour of the plaintiff. The law on the point is clear. There could not be a valid gift in favour of any person so long as there was no delivery of possession by the donor to the donee. Whether the gift has not been perfected would depend upon the nature of the property donated and the nature of possession having regard to the character of the property. The question is whether the donor had done everything which reasonably lay in his power to do in order to complete the gift. It has to be remembered that Mulu, the donor and the defendants were co-owners in the property in dispute. It has also to be remembered that the lower appellate Court has arrived at a distinct finding that the possession of the defendants is not adverse to that of Mulu. The further fact which has to be borne in mind is that the present action has been launched by Mohammad Sharif Khan, who is a minor with Sheikh Mulu his maternal grandfather as his next friend.
5. It has been contended by the respondent that the lower appellate Court intended to find that Mulu, the donor, was in constructive possession of the fixed rate holding at the time of the gift, and he made a constructive delivery of possession in favour of the plaintiff-respondent. I have been taken through the judgment of the lower appellate Court and I do not find that there is a clear finding on this point. For the proper disposal of this appeal, I think it necessary to remit the following issue:
Was Mulu, the donor, in constructive possession of the property gifted, on 4th June 1926, and did he constructively deliver possession thereof to Mohammad Sharif Khan, the plaintiff-respondent?
6. The lower appellate Court is directed to submit its finding on the above issue within two months of the receipt of the record. Upon return of the finding that the usual ten days' time will be allowed for objections.
7. (On receiving the finding his Lordship delivered the following) JUDGMENT
8. The finding of the lower appellate Court is that Mulu, the donor, was in constructive possession of the fixed rate holding at the date of the gift and that he had done everything which he could be reasonably expected to do to put the minor donee to get possession of the gifted property. Objection has been taken to this finding but the objection has no force and cannot be seriously entertained. As was observed by the Privy Council in Muhammad Mumtaz Ahmad v. Zubaida Jan [1889] 11 All 460, the doctrine of musha ought to be confined within the strictest limits being a doctrine wholly unadapted to a progressive state of society. Mulu had a share in the fixed rate holding jointly with the defendants. He was in constructive possession of the holding through the defendants. He did all that lay in his power to do to wipe himself off and to put his donee into the same kind of possession as he himself had over the property. This gift was therefore complete under the Mahomedan law. This case is not dissimilar to Ahmadi Begum v. Abdul Aziz A.I.R. 1927 All. 345, in which the gift of an undivided share of joint property in favour of the daughter was upheld by this Court.
9. This appeal is without force and is dismissed with costs including in this court-fees on the higher scale.